Book Reviews
When Lightning Strikes Twice
Garrison Nelson, Pathways to the
US Supreme Court: From the
Arena to the Monastery
Palgrave Macmillan, 2013
241 pp., $110
Reviewed by Benjamin D. Battles, Esq.
Justice Stephen Breyer once remarked that
being appointed to the Supreme Court of
the United States requires lightning “to strike
twice in the same place.”1 In other words,
a prior judicial appointment is essentially a
prerequisite. Indeed, all but one of the current justices were sitting federal judges when
nominated, and before Solicitor General Elena Kagan replaced John Paul Stevens, the
Court was constituted entirely of former judges. In Pathways, University of Vermont professor Garrison Nelson2 contrasts this narrow career path to that of earlier justices who often came to the Court with high-level political
experience as governors, senators, and cabinet officials. Aided by a small army of charts
and tables that only a political scientist could
love, Nelson comprehensively documents the
trend in Supreme Court nominees away from
experience in the “political arena” in favor of
service in the “judicial monastery.”3 But upon
becoming justices do arena-hardened politicos decide cases better, or differently, than
cloistered judicial monks? While Pathways
is filled with interesting historical anecdotes
and is a useful resource to scholars studying
the Court, it leaves this central question unanswered.
Nelson places each Supreme Court nominee in one or more of four categories: collateral (nominees from Congress, governorships, or the Cabinet); diagonal (nominees
from lower government posts); vertical (nominees from the judiciary); and external (nominees from private practice or academia). Using this framework he then chronicles how recent presidents overwhelmingly favored vertical monastery nominees, in contrast to the
collateral arena nominees often selected by
earlier presidents. Nelson pegs the turning
point as President Eisenhower’s 1953 selection of California governor Earl Warren to
serve as chief justice. Decisions like Brown v.
Board of Education4 and Miranda v. Arizona5
40
apparently were not what Eisenhower had in
mind when he named the Republican former
prosecutor. Lessons were learned, and later Presidents realized that vertical nominees
were more ideologically predictable than collateral, diagonal, or external nominees who
lacked judicial track records. Consequently,
when the Court decided Citizens United v.
FEC6 in 2010, it was composed of nine former
federal appellate judges. Contrast that to the
Brown Court, which included a former governor, three former senators, a former cabinet
member, two others who had served in high
government positions (as Solicitor General
and SEC Commissioner), and a law professor.
A Supreme Court justice votes to select the cases the Court hears, votes to decide how to resolve those cases, and writes
opinions to explain those votes. The implicit
premise of Pathways is that political experience helps a justice perform these core functions and that consequently the loss of that
experience is troubling. Nelson’s displeasure
with the current Court, however, seems based
as much on its conservative ideology as on
the justices’ résumés. He argues at the outset of Pathways that recent courts “overloaded with conservative verticals” either failed to
understand the political implications of their
actions or have become so “inured to their
perceived partisanship” that they are willing
to issue decisions like Clinton v. Jones,7 Bush
v. Gore,8 and Citizens United.9 Elsewhere he
contends the Supreme Court “has been converted into an ideologized monastery” to
such an extent that George W. Bush, by the
time he left office, could look at the Court
and declare “MISSION ACCOMPLISHED!”10
But conservative ideology and political experience are by no means mutually exclusive. It
is hard to imagine, for example, that the appointment of a Justice Ted Cruz would ease
Nelson’s concerns, experience in the political
arena notwithstanding.11
Nelson admits there is at most a tenuous
connection between prior judicial service and
conservative Supreme Court decision-making: “the simple fact is that the verticals of
the judicial monastery may be conservative
but are not dramatically more so than the
arena-tested collaterals.”12 Nor can it be said
that vertical nominees inevitably make bad
justices or that collateral nominees inevitably
make good ones. After all, Holmes and Cardozo came from the monastery while Roger Taney—author of the majority opinion in
Dred Scott v. Sandford